Amendments to Florida Rules of Appellate Procedure Regarding Records and Appendices Took Effect October 1, 2017

On September 7, 2017, the Supreme Court of Florida amended the Florida Rules of Appellate Procedure regarding the record on appeal and any appendix filed in appellate proceedings. The amendments took effect on October 1, 2017. In re: Amendments to the Florida Rules of Appellate Procedure, Case No. 16-1377 (Fla. Sept. 7, 2017). The bulk of the changes were to rule 9.200 (“The Record”) and rule 9.220 (“Appendix”), but several other rules were affected as well.

Rule 9.200(f)(3) now provides for the appellate court to direct the clerk of the lower tribunal to submit a compliant record, which will replace a previously-filed noncompliant record, in instances where the court finds that the record is not in compliance with the technical or formatting requirements of rule 9.200(d). Rule 9.200(d)(4) points out that attorneys (and parties who are registered users of the court’s e-filing system) may download the electronic record on appeal in their cases from the e-filing system docket such as the docket within eDCA.

The amendments most directly affecting appellate practitioners are to rule 9.220, where the Florida Supreme Court established certain requirements for the preparation and electronic filing of appendices to appellate briefs, petitions, motions, responses, or replies. Many of these requirements are similar to obligations that were already in effect in the Fourth District since June 10, 2016, under Administrative Order 2016-2 of the Fourth DCA.

The new statewide requirements for electronic appendices under Rule 9.220 include the following (along with some parenthetical clarifications and some notations about additional requirements in the Fourth District’s administrative order):

The appendix must contain a certificate of service.

The appendix must include a coversheet, which must state: the name of the court; the style of the cause, including the case number if assigned; the party on whose behalf the appendix is filed; the title of the petition, brief, motion, response, or reply for which the appendix is served; and the name and address of the attorney, or pro se party, filing the appendix.

The appendix must be prepared and filed electronically as a separate PDF file (separate from the petition, brief, motion, response, or reply which it accompanies).

The PDF file must be text searchable.

The electronically-filed appendix must be filed as 1 document, unless size limitations or technical requirements established by the Florida Supreme Court Standards for Electronic Access to the Courts require multiple parts.

The appendix must be properly indexed and consecutively paginated, beginning with the cover sheet as page 1.

The PDF file must be paginated so that the page numbers displayed by the PDF reader exactly match the pagination of the index. (Thus, for example, the page displayed in the PDF reader as the 25th page of the PDF file must be numbered “25.”)

The PDF file must be bookmarked, consistently with the index, such that each bookmark states the date and name of the document which it references. (It is also helpful, even if not yet required, for each bookmark to state the PDF page number on which the bookmarked document begins. This is already a requirement for electronic records on appeal, where each bookmark must state “the date, name, and record page of the filing.” Rule 9.200(d)(1)(C)(iii).)

All bookmarks must be viewable in a separate (or side) window of the PDF reader.

The appendix must not contain any condensed transcripts (such as four-pane “mini” transcripts), unless authorized by the court.

Each bookmark must direct to the first page of the referenced document. (Additionally, Fourth DCA AO2016-2 prohibits an electronically-filed appendix from containing additional divider or tab pages before those documents, as would have been included in a paper appendix.)

Beyond those requirements, the Fourth DCA’s AO2016-2 also points out that all appendices must be in compliance with Florida Rules of Judicial Administration 2.420 and 2.425 regarding the protection of confidential records and the minimization of the filing of sensitive information. For example, Rule 2.425 requires redactions such as using only the initials for the names of minors. Under rule 2.420(d)(2), “The filer of any document containing confidential information … shall, at the time of filing, file with the clerk a ‘Notice of Confidential Information within Court Filing’ in order to indicate that confidential information described … is included within the document being filed and also indicate that either the entire document is confidential or identify the precise location of the confidential information within the document being filed.”

Additionally, the amendments to Rule 9.220 created subdivision (d), regulating the formatting of appendices where a paper format is authorized as an exception under Fla. R. Jud. Admin 2.525(d) to the general electronic filing requirements of rules 2.520(a) and 2.525. For instance, certain pro se individuals may file paper documents. An appendix in paper format must be separate from the petition, brief, motion, response, or reply to which it pertains, and it must not be bound because binding would impede scanning the document. Rule 9.220(d). (Similarly, rule 9.210(a)(3) requires that “briefs filed in paper format shall not be stapled or bound.”) If the paper appendix includes documents filed before January 1991 on legal-size paper, those documents should be reduced to letter-sized copies.

Several other rules of appellate procedure also received amendments related to electronic records and will take effect on October 1, 2017. These additional amendments include:

Rule 9.020(l) (defining the term “E-filing System Docket”);

Rule 9.120(e) (providing requirements for the clerk of the district court of appeal when preparing and transmitting the record to the Florida Supreme Court when the Court has accepted jurisdiction, or postponed a decision on jurisdiction, in discretionary proceedings to review decisions of district courts of appeal);

Rule 9.141(b)(3)(B)(ii) (regarding a lower court clerk’s renumbering of record pages when preparing the record for review of a grant or denial of a motion after an evidentiary hearing, for review proceedings in collateral or postconviction criminal cases);

Rule 9.160 (changing “filed” to “transmitted” with reference to records prepared for discretionary proceedings for the DCA to review certain decisions of county courts, which would otherwise be appealable to the circuit court sitting in its appellate capacity but which the county court has certified to be of great public importance); and

Rule 9.180 (changing “filed” and “delivered” to “transmitted,” and changing “send” to “transmit,” with reference to records prepared for appeal proceedings to review workers’ compensation cases).

Effective October 1, 2017, electronic appendices which do not comply with the amended rule 9.220 will be stricken. The Law Offices of Robin Bresky, an appellate law firm in South Florida and serving all of Florida, is available to address questions regarding these amendments or assist with compliance with the new requirements.

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